Citation Nr: 0736454
Decision Date: 11/19/07 Archive Date: 12/06/07
DOCKET NO. 05-00 916 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for a bilateral knee
disorder for the purpose of accrued benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Irene Zaki, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1941 to
November 1945, and from May 1946 to May 1968. He died in
February 2003. The appellant is the veteran's widow.
The instant appeal arose from a June 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO),
in Nashville, Tennessee, that denied the benefit sought on
appeal. The Board remanded the appeal for further
development in May 2006.
FINDING OF FACT
A chronic bilateral knee disorder was not present during
service, arthritis of the knees was not manifest within a
year after service, and the veteran's post service left knee
disorder did not develop as a result of any incident during
service.
CONCLUSION OF LAW
A bilateral knee disorder was not incurred in or aggravated
by service, and arthritis of the knees may not be presumed to
have been incurred in service. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Accrued Benefits Eligibility
Accrued benefits are defined as periodic monetary benefits to
which an individual was entitled at death under existing
ratings or decisions, or those based on evidence in the file
at date of death and due and unpaid for a period not to
exceed two years. 38 U.S.C.A. § 5121(a) (West 2002); 38
C.F.R. 3.1000(a) (as amended) (2005).
In Jones v. West, the United States Court of Appeals for the
Federal Circuit (Federal Circuit) concluded that, "for a
surviving spouse to be entitled to accrued benefits, the
veteran must have had a claim pending at the time of his
death for such benefits or else be entitled to them under an
existing rating or decision." Jones, 136 F.3d 1296, 1299
(Fed. Cir. 1998).
The Federal Circuit noted that "a consequence of the
derivative nature of the surviving spouse's entitlement to a
veteran's accrued benefits claim is that, without the veteran
having a claim pending at time of death, the surviving spouse
has no claim upon which to derive his or her own
application." Id. at 1300.
The adjudication of the claims for accrued benefits must be
made based upon the evidence on file at the time of his
death, including any VA medical records that must be deemed
to have been constructively on file at that time. See 38
U.S.C.A. § 5121(a) (West 2002) and 38 C.F.R. § 3.1000(a)
(2007); see also Bell v. Derwinski, 2 Vet. App. 611 (1992)
(VA records are deemed to be constructively in the possession
of VA adjudicators and must be obtained).
After a review of the evidence, the Board finds that the
veteran had a pending claim of entitlement to service
connection for a bilateral knee disorder at the time of his
death. Specifically, he filed a claim in October 2001. The RO
denied the claim in May 2002. The veteran timely submitted a
notice of disagreement in May 2002. The veteran died on
February [redacted], 2003, prior to receiving a statement of the case
regarding the claim on appeal. Therefore, because the timely
appealed May 2002 decision was not yet final in February
2003, at the time of death, it was still "pending" for
purposes of the regulations. 38 C.F.R. § 3.1000(d)(5).
Moreover, although the veteran's claim terminated with his
death, the regulations set forth a procedure for a qualified
survivor to carry on, to a limited extent, a deceased
veteran's claim for VA benefits by submitting a timely claim
for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see
Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
Thus, while the claim for accrued benefits is separate from
the claim for service connection filed by the veteran prior
to his death, the accrued benefits claim is derivative of the
veteran's claim and the appellant takes the veteran's claim
as it stood on the date of his death. See Zevalkink v. Brown,
102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v. West, 146 F.3d
1296 (Fed. Cir. 1998).
In the instant case, the veteran died in February 2003, and
the claim for accrued benefits was received in April 2003.
The veteran's widow seeks service connection for a bilateral
knee disorder for the purpose of receiving accrued benefits.
Duties to Notify and Assist
The United States Department of Veterans Affairs (VA) has a
duty to notify and assist claimants in substantiating a claim
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
Here, the duty to notify was not satisfied prior to the
initial unfavorable decision on the claim by the AOJ. Under
such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the AOJ's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the AOJ) see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant proper notification followed by
readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial AOJ decision by way of a letter
sent to the appellant on June 2006 that fully addressed all
four notice elements. The letter informed the appellant of
what evidence was required to substantiate the claim and of
the appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in her or his possession to the AOJ.
Although the notice letter was not sent before the initial
AOJ decision in this matter, the Board finds that this error
was not prejudicial to the appellant because the actions
taken by VA after providing the notice have essentially cured
the error in the timing of notice. Not only has the
appellant been afforded a meaningful opportunity to
participate effectively in the processing of her or his claim
and given ample time to respond, but the AOJ also
readjudicated the case by way of a supplemental statement of
the case issued in October 2006 after the notice was
provided. For these reasons, it is not prejudicial to the
appellant for the Board to proceed to finally decide this
appeal as the timing error did not affect the essential
fairness of the adjudication.
VA has a duty to assist the appellant in the development of
the claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The
claims file contains the veteran's personnel file and his
service medical records. The appellant submitted private
medical records regarding the claim on appeal. A VA medical
opinion to address the issue on appeal has also been
obtained. A July 2007 statement indicates that the appellant
has no additional evidence for submission.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993).
Service Connection for Bilateral Knee Disability
The appellant seeks to establish a connection to service for
a bilateral knee disorder, claiming the condition was related
to the veteran's work as a paratrooper during service.
According to the law, service connection is warranted if it
is shown that a veteran has a disability resulting from an
injury incurred or a disease contracted in the line of duty,
or for aggravation of a preexisting injury or disease in
active military service. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303. Service connection may also be granted for
any disease diagnosed after discharge when all of the
evidence establishes that the disease was incurred in
service. See 38 C.F.R. § 3.303(d).
"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999). Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required. This burden typically cannot
be met by lay testimony because lay persons are not competent
to offer medical opinions. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
Some chronic diseases, like arthritis, may be presumed to
have been incurred in service, if they become manifest to a
degree of ten percent or more within one year of the date of
separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a);
38 C.F.R. §§ 3.307(a), 3.309(a).
The post-service evidence demonstrates that the veteran had
bilateral arthritis of the knees. A September 2001 X-ray
report indicates some arthritis, a moderate amount of bone
spur and sclerosis. Such diagnosis was confirmed by private
physician K. D. S., M. D. in a September 2001 treatment
report. The element of service connection requiring a
diagnosed (current) disability is met. However, since the
diagnosis of arthritis was made more than one year after
service, the presumption of service connection does not
apply.
Regarding in service incurrence of an injury, the veteran's
personnel records indicate that he had several military
occupational specialties with parachute troopers including
parachute rigger and parachute packing and maintenance. The
veteran's service medical records show that he had a left
knee sprain of the medial collateral ligament in June 1953.
However, the service medical records do not include any
continued treatment for such injury nor any additional knee
injuries. Additionally, at the veteran's March 1968
separation examination his knees were found to have normal
strength and range of motion. There is no evidence of
complaints or treatment for any knee for many years following
discharge. The Board finds the complete lack of any clinical
records reflecting treatment and persuasive evidence that the
veteran was not treated for a bilateral knee disability
chronically or continuously following service. See Forshey
v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the
definition of evidence encompasses "negative evidence"
which tends to disprove]. Therefore, the evidence of record
does not indicate a chronic bilateral knee problem in service
or shortly thereafter.
As noted above, service connection also requires a nexus
between the in-service injury and the current disability.
The first evidence of record showing complaints of knee pain
is a May 1999 private treatment record from J. R. D., M D.
There is no evidence of record showing any complaint,
treatment, or a diagnosis associated with the knee between
1953 and 1999. A September 2001 statement from private
physician K. D. S., M. D. states that the veteran's knee
condition could have been contributed to by his military
service and multiple paratrooper jumps. A March 2007 VA
medical opinion and its addendum in May 2007 state that there
is no known connection between a healed medial collateral
ligament and the subsequent development of arthritis. Given
that the private physician's statement only references the
possibility of multiple paratrooper jumps and does not
address the specific in-service injury renders it less
probative to the question of whether the veteran's left knee
injury caused a chronic disability. Additionally the VA
medical opinion is clearly based on the evidence of record,
while there is no indication that the private physician's
statement included a review of the veteran's claims file.
Accordingly the probative evidence of record fails to support
a connection between the veteran's arthritis of the knees and
his military service.
While the veteran was diagnosed with bilateral arthritis of
the knees in 2001 and many years after service discharge, the
evidence of record fails to show that it was affiliated with
his military service. The evidence is not in equipoise, so
the provisions of 38 U.S.C.A. 5107(b) regarding reasonable
doubt are not applicable. The claim is denied.
ORDER
Service connection for a bilateral knee disorder for the
purposes of accrued benefits is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs